High Court Judge Damone Younge has ruled that President Irfaan Ali must act with “all convenient speed” in ensuring the appointments of a substantive Chancellor and Chief Justice and therefore must also move with swiftness in engaging Leader of the Opposition Aubrey Norton as is mandated by the Constitution.
She said that the current state of affairs “is a stain to our country’s otherwise richly woven legal tapestry.”
She made it clear, however, that contrary to the action brought by the main opposition APNU+AFC, the President could not be said to have been in dereliction of duty nor constitutional breach with any delay ascribed to him by the political party between August 2020 and April 2022, for not ensuring the appointments of the top two judicial posts.
The Judge pointed out that in fact, from the evidence before her for the period complained of by the Opposition, there was at one stage no Opposition Leader with whom the President could have consulted as is constitutionally required.
Moreover, without naming him, the Judge pointed out that Norton’s predecessor—Joseph Harmon—did not recognize the Government as legitimate and refused to engage in any talks with the President.
Ali in turn had said that he would not engage in consultations with an Opposition which did not recognise his government’s legitimacy. The Attorney General AG (the Respondent) averred, however, that the President in October of 2021 publicly stated that he was ready to meet Harmon to consult on key constitutional offices.
The AG further argued on behalf of the government, the Court noted, that though Norton took over as Opposition Leader in December of 2021; he had not been elected in that position until April 13th, 2022, several months after his predecessor (Harmon) had resigned from the post.
The AG submitted that for those months the office of the Leader of the Opposition was vacant and so there was no one with whom the President could have engaged.
Ali was declared president on August 2nd, 2020.
In handing down her ruling, Justice Younge said the issue which had to be resolved was whether the delay in initiating the process for a substantive Chancellor and Chief Justice amounted to a great dereliction of duty and constitutional breach on the part of the president, as contended by the Opposition.
The Judge noted that in the particular circumstances of the case, the President could not be faulted for the delay.
Justice Younge said that for decades the two major political parties in Guyana have been at an impasse in relation to these particular judicial appointments, adding that “regrettably,” for as long as there has been no agreement between the President and the Leader of the Opposition the country has been without a substantive Chancellor and Chief Justice.
“This state of affairs is a stain to our country’s otherwise richly woven legal tapestry,” she said.
Describing the state-of-affairs as an “unhappy situation,” which she said was ushered in by Constitutional (Amend-ment) (No. 4) 2001 which altered the mechanism for appointing the substantive Chancellor and Chief Justice by requiring agreement between the President and Opposition Leader under Article 127 of the Constitution, the Judge noted that for decades successive Presidents and Leaders of the Opposition have failed to agree on the substantive appointment of these office holders.
“This created a disconsolate quagmire which has resulted in an unattractive and prolonged succession of acting appointments to these important constitutional offices,” she said; while adding that “the acting appointments to the top two positions of the Judiciary, an independent arm of the State, continues unabated seemingly with no end in sight.”
The Opposition submitted that the President had been guilty of inordinate and unreasonable delay in discharging the Constitutional duty conferred on him by Article 127. Meanwhile; Attorney General Anil Nandlall SC had argued that the President is committed to complying with all his constitutional obligations and duties and is on record as saying that he is prepared to make the appointments to the offices of Chancellor and Chief Justice.
The AG urged the Court to look at the President’s duty to comply with Article 127(1) of the Constitution in the context of the “political travails” which surrounded the office of the Leader of the Opposition since Ali took office in August 2020.
In examining the issue to be resolved before her, Justice Younge said it cannot be disputed that to date there has been no engagement between the President and Norton.
She said it is apparent upon a reading of Article 127(1), that the Constitution imposes a mandatory obligation on the President and the Leader of the Opposition to come to an agreement on the individuals to be appointed substantively as Chancellor and Chief Justice.
Article 127(2) of the Constitution the Judge pointed out, makes provision for when the offices of Chancellor and Chief Justice are vacant or the persons holding those offices are for any of the stated reasons unable to perform their functions then those functions “shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
“It is under this Article that the seemingly endless “acting” appointments of Chancellor and Chief Justice have been made,” Justice Younge said.
She said that in this regard, the Court is of the considered view that, despite the existence of Article 127(2), it could not have been the intention of the framers of the Constitution that Article 127(1) would not be complied with for decades resulting in perpetual acting appointments to these substantive posts.
“Acting appointments, by their very nature, suggest that they are for a short term and made on a transient basis,” she said; while adding that Article 127(2) “is not, and ought not, to be used as a lacuna or loophole through which a President and/or a Leader of the Opposition can abdicate his/her mandatory constitutional obligation under Article 127(1) of the Constitution.”
Justice Younge said the Court is of the firm belief that Article 127(1) of the Constitution was fashioned by the framers with the aim of “consensus building and political comity.”
So much so she went on to add, that the bar was raised for these constitutional appointments from mere “consultation” with the Leader of the Opposition to “agreement” of the Leader of the Opposition.
This she said, is recognition that all political stakeholders should have a part to play in the ultimate selection of these important constitutional posts and that therefore, the Constitution must have also intended that the President and the Leader of the Opposition would act with “abundant good faith” in the discharge of their duty under Article 127 of the Constitution.
She said it must have also been envisaged that some level of expediency in filling the important constitutional offices would be exercised to ensure the competent functioning of the judicial arm of State.
Justice Younge said that the absence of substantiative appointments to the offices of Chancellor and Chief Justice, particularly for the protracted length of time experienced in Guyana, fails to insulate the judiciary from attacks on its independence as provided for in Article 122A of the Constitution which she said “threatens the very fabric of our thriving democracy.”
Given the particular circumstances which occasioned the current delay towards substantive appointments being made as deposed by the State which she noted the Opposition did not dispute, Justice Younge said it appears both “reasonable and rational.”
Against this background she said that while the onus is on the President to initiate the consultative process for appointments under Article 127(1) since it is in him that the power to appoint resides; from the period August 2020 when he took Office to April 2021 when Norton was appointed the Leader of the Opposition, there was no reciprocal party with whom he could have engaged given the refusal of the then Leader of the Opposition (Harmon) to engage.
“There was no active engagement, mutuality and sincere receptivity on the part of the then Leader of the Opposition to partake in such a process,” the Judge said.
She said it appears from the evidence before the Court that it was only after Norton was appointed as Leader of the Opposition that any interest in consulting with the President was demonstrated, as there was correspondence back and forth between him and Government regarding the discharge of his constitutional duties to consult on certain appointments.
Notwithstanding those issues which she noted are now passed, however, Justice Younge specifically ordered the two major political actors to now move with all convenient speed in ensuring consultation so that the important judicial appointments can be made.
She stressed the mandatory nature of their obligation in complying with the provisions of the Constitution in making the appointments, which she was keen on pointing out “necessarily requires active engagement, mutuality and sincere receptivity.”
The Judge then went on to note that whilst the Constitution does not give time limits as to when this process is to begin or end, she said it is expected that, even without the Court’s intervention, the President and the Leader of the Opposition would act with some expedition to bring this impasse to a swift end.
Referencing the AG that “the President has repeatedly stated his intention and commitment to comply with all his duties under the Constitution,” Justice Younge said that there would be “no better way” that the President can demonstrate “this unassailable devotion and commitment” to his duties than by acting with alacrity to initiate the process for the eventual substantive appointment Of Chancellor and Chief Justice.
She continued, “for too long Guyana has been without substantive office holders for the two top positions in the Judicial arm of the State, a situation which continues to be untenable and unacceptable to the citizenry and inimical to the independence of the judiciary that the Supreme Law of the land provides for. Any further delay in commencing this process should be eschewed so that this “significant blot on an otherwise impressive Guyanese legal and judicial landscape” is not perpetuated further.”
Given what she said it the public importance of the matter, the Judge made no orders as to cost.
Background
The action had contended that President Ali was in “gross dereliction and abdication of the duty” and had no “lawful excuse” for not consulting with Norton, on the substantive appointments of a Chancellor and Chief Justice.
The coalition wanted the Court to declare that Ali had in fact failed to consult with Norton for substantive officer holders for the top two judicial posts.
Filed in the name of Opposition MP Vinceroy Jordan, the action advanced that Ali’s failure to consult in accordance with Article 127 of the Constitution for ensuring the permanent appointments is a “gross dereliction and abdication of [his] duty.”
Through his attorneys Roysdale Forde SC and Selwyn Pieters, Jordan (the Applicant) wanted the Court to grant an order directing the President, through his Attorney General, “to be compelled to forthwith initiate the consultation process envisioned by Article 127 of the Constitution.”
Addressing the long-overdue appointment of a substantive Chancellor and Chief Justice of Guyana, Ali in June of last year had said that while he had no issue appointing the two top judicial officers, he would do so when the “right time comes.”
Guyana has not had a confirmed Chancellor and Chief Justice for the past 18 years. Justices Yonette Cummings-Edwards and Roxane George SC were appointed acting Chancellor of the Judiciary and Chief Justice back in 2016 and 2017, respectively, following the retirement of then acting Chancellor Carl Singh, who was also never confirmed despite having served for 12 years from 2005. Justice Ian Chang demitted office in February 2016, having served as acting Chief Justice from 2010.
The ball is presently in the President’s court as Norton had said that he is in favour of confirming Justices Cummings-Edwards and George in their present positions. The President has not formally responded to this position enunciated by Norton.
